The Delhi high court has set aside the Centre's order cancelling the Overseas Citizen of India card of a professor residing in the US on the allegation of being involved in "anti-India activities", saying the notice lacks specific details or evidence supporting these claims.
It deprived the petitioner of a fair chance to present an effective defence, a crucial component of procedural fairness and principles of natural justice, the court held while allowing the plea of 80-year-old Khalid Jahangir Qazi.
Striking a balance between individual rights and national security, the high court said before allowing Qazi to enter the country, the authorities are directed to issue a fresh notice clearly specifying the grounds for any intended restrictions or cancellations and give him a reasonable opportunity to respond.
"This notice should provide the petitioner with sufficient details to understand the basis of the proposed action and to respond accordingly. The petitioner shall be given a reasonable opportunity to submit a reply within a specified time frame, after which the government must carefully consider this representation and issue a reasoned decision, under both the statutes, which shall be conveyed to the petitioner," Justice Sanjeev Narula said in a verdict passed on Tuesday.
"This process should be completed within six weeks from today (Wednesday)," Justice Sanjeev Narula said.
Qazi, a US national holding the status of an Overseas Citizen of India, approached the court seeking entry into India.
He challenged the legality of two restrictive measures imposed upon him an order cancelling his OCI card under the Citizenship Act and a blacklisting order issued by the ministry of home affairs under the Foreigners Act, restraining his entry into India.
The basis for the actions was the petitioner's alleged involvement in activities deemed to be prejudicial to the interests of India. Qazi, working as a Clinical Professor of Medicine at the Jacob School of Medicine and Biomedical Sciences at University at Buffalo, had shifted from India to the US in the 1970s and has been residing there with his family.
He wishes to travel to India to meet his other family members who are staying in Srinagar.
The Centre, represented by additional Solicitor General Chetan Sharma and senior panel counsel Farman Ali, submitted that the decision to cancel the petitioner's OCI card was made following a detailed assessment of his actions.
They said reports and intelligence inputs from security agencies of the ministry of external affairs suggested that he has engaged in activities inimical to India's sovereignty and integrity.
These activities, however, remain classified as "secret for the security of India" and, for reasons of national security, cannot be disclosed to the petitioner, the Centre's counsel said.
After perusing the authorities' notice, the court said it vaguely asserts that the petitioner's actions are "anti-India" and adverse to "the sovereignty and integrity of India", without any specific details or evidence supporting these claims.
"Such broad allegations lack the specificity necessary to afford the petitioner an adequate opportunity to be heard, thus, contravening the procedural safeguards explicitly embedded in the .... Citizenship Act," it said.
The court said allowing the state to circumvent the safeguards embedded in the OCI scheme would erode the privileges the legislature intended for OCI cardholders, undermining both the purpose and object of the status of OCI cardholders under the Citizenship Act and rendering their protections redundant.
The result would be that an OCI cardholder, though technically retaining their registration, would effectively be prevented from exercising the rights afforded by that status, it said.
The court added that the long-term visa rights conferred under the OCI scheme would, in effect, be nullified without due process, denying the cardholder the intended benefits.
The court said that without specific facts and grounds, Qazi was denied an adequate opportunity to respond substantively to the reasons underlying the proposed cancellation.
"This lack of clarity deprived the petitioner of a fair chance to present an effective defence, a crucial component of procedural fairness and principles of natural justice. Consequently, this court finds that the cancellation order cannot withstand judicial scrutiny and is liable to be set aside," it said.
The court said that to remedy this deficiency, the authorities must issue a fresh show cause notice clearly specifying the grounds for the proposed cancellation, allowing the petitioner an informed opportunity to respond.
"While the setting aside of these orders technically allows the petitioner to re-enter the country, the underlying concerns relating to national security and public interest remain significant. Moreover, there can be no doubt that authority to grant or deny entry into the country is a sovereign function and prerogative of the state," it said.
The court said the authorities should take a fresh decision keeping in mind the legislative intent behind the protections afforded to OCI cardholders and the findings of the court rendered here.
